Hawaii Tax Foundation Prez Poses Questions about Legalized Gambling in Hawaii

Can Legalized Gaming Fill Hawaii's Budget Hole
12.18.2011

By Lowell Kalapa
President, Tax Foundation of Hawaii

At its most recent meeting, the State Council on Revenues downgraded its outlook for Hawaii’s economy by dropping its forecast of economic growth from 6.7% to 5.2% for the current fiscal year.

Although the overall growth rate in general fund tax revenues was pegged at 14.5%, 4.3 points are attributable to the catch up of the delay in state income tax refunds from two years ago and 5 points are attributed to the changes in state tax laws that are expected to produce about $200 million less in new revenues than the legislature had counted on when drawing up its financial plan for the fiscal biennium.

These latter tax law changes are good only for the current and next fiscal year and, therefore, added revenues from that source will disappear in fiscal year 2014.

It should also be noted that the Council’s adoption of the added revenues from tax law changes is substantially less than what the legislature had assumed when they adopted those changes. The difference amounts to approximately $100 million for each of the two fiscal years. Therefore, even without any spending restrictions or other adjustments to the recently approved biennium budget, the state-spending plan will be under water by almost $200 million over the fiscal biennium.

Given that situation, lawmakers will be searching for additional revenues in order to avoid making additional reductions in spending. The will to adopt additional tax increases will be absent given the fact that all legislators will be up for reelection in 2012 as a result of the decennial reapportionment of the legislative districts.

Thus, many observers believe that the legislature will actually turn its attention to a number of gaming bills that were introduced during the 2011 session and to some extent received considerable attention. There is no doubt that gaming might be looked upon as a potential resource to fill in the budget gap.

On the other side, again, is the fact that next year is an election year and the public is deeply divided on the issue of gaming, especially in the House where each representative has a smaller constituency in his or her district and where a few votes one way or the other could win or lose the election. In addition, as with all levels of government pushing to downsize payrolls, the additional monitoring and regulation of gaming activities may work against adoption of the activity if it means added personnel costs for the public sector even though there may be additional revenues from gaming.

Then there are those who are concerned about the potential social problems that gaming in Hawaii would create. We all chuckle every time someone mentions going to “Vegas” or enumerates the number of trips made to that ninth Hawaiian Island. It is a matter of fact that Hawaii people like to gamble and at least the time and expense of traveling to Las Vegas stands as a barrier to those who financially cannot swing the trip and probably can’t afford to lose the money.

The question that lawmakers and taxpayers need to ask is whether or not the additional revenues lawmakers believe will come from adding gaming to the list of revenue resources will outweigh the additional costs that will come with gaming. While gaming, per se, is not a tax, it has tax implications from the standpoint that it will require additional public programs - those that are needed to operate the gaming activities including the legal enforcement and those that will be needed to address the social and financial implications.

Another consideration is the amount of participation that will be needed to make a gaming industry a lucrative source of public revenue. Unlike its counterparts on the mainland which allow gaming, Hawaii is not contiguous with other jurisdictions where residents from other states or counties can cross state lines to participate in the gaming activity of another state or county. Think of it in the reverse of Hawaii residents traveling to Las Vegas. Will the cost, time and distance be attractive enough to gamble in Hawaii?

Finally, the adoption of any form of gaming in Hawaii may open the door to forms other than what may be authorized by the legislature because of the Hawaiian sovereignty issue giving rise to those other forms of gaming on native Hawaiian enclaves such as Hawaiian Homes Lands.

Property Bay Mills Indians Acquired in 2010 not 'Indian Lands;' Not Sovereign or Tax Exempt

Because property is Indian “owned” does not automatically mean those lands are “Indian Lands,” a special and unique designation. Only Indian Lands are considered sovereign and as such exempt from the usual local taxes, fees, codes, regulations and laws. Property that is simply Indian owned is not considered sovereign and not exempt. 

In shutting down the Bay Mills Indian Community’s (BMIC) rogue off-reservation casino in Vanderbilt (MI) last March, the U.S. Federal Court (Judge Paul L. Maloney) ruled that the property the tribe acquired in Vanderbilt during 2010, located 100 miles away from the tribe’s Upper Peninsula reservation, are not Indian Lands. Specifically (from Judge Maloney’s ruling (pgs 10-11):

Section 107(a)(3) authorizes the earnings of the Land Trust to be used for two specific purposes: (1) improvements on tribal land and (2) the consolidation and enhancement of tribal landholdings. Bay Mills does not suggest or argue that the Vanderbilt Tract constitutes an “improvement on tribal land.” Bay Mills defends the purchase as authorized by the second purpose. In the context of this provision, the statutory language has a plain and obvious meaning. The word “consolidate” means “to bring together or unify.”9 The word “enhance” means “to improve or make greater” or “to augment.”10 Obviously, the purchase of the Vanderbilt Tract is an enhancement of tribal landholdings, as the additional land augmented, or made greater, the total land possessed by Bay Mills. However, the statute does not authorize every enhancement. The statute uses the conjunction “and” between the word “consolidation” and the word “enhancement.” The use of the word “and” cannot be ignored. See Williams v. Taylor, 529 U.S. 362, 404 (2000) (“It is, however, a cardinal principle of statutory construction that we must ‘give effect, if possible, to every clause and word of a statute.’”) (citations omitted). In order for the purchase of land to be an “enhancement” authorized by the § 107(a)(3), the purchase must also be a “consolidation.” The statute requires any land purchase to be both a consolidation and an enhancement. Under §107(a)(3), Bay Mills may use the earnings from the land trust to acquire additional land next to, or at least near, its existing tribal landholdings. The statute does not allow Bay Mills to create a patchwork of tribal landholdings across Michigan.

Prior to Judge Maloney’s ruling, both the National Indian Gaming Commission (NIGC) and the U.S. Department of Interior had issued similar opinions. From a memorandum provided to the NIGC Chairwoman, December 2010:

On Wednesday, November 3, the Bay Mills Indian Community opened an off-reservation gaming facility in Vanderbilt, Michigan. The considered opinion of the Department of the Interior Solicitor is that the land is not within a reservation, not held in trust, and not held in restricted fee. Accordingly, the Community’s new casino is not on Indian lands within the meaning of the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. §§ 2701- 2721, and the National Indian Gaming Commission lacks jurisdiction over it. We are obligated, therefore, to refer the matter to the appropriate law enforcement agencies.

 

Specifically by rulings and opinions issued by U.S. District Court, U.S. Department of Interior Solicitor and National Indian Gaming Commission, the Bay Mills Indian Community’s property in Vanderbilt are not Indian Lands.  And by implication, two other similarly acquired parcels BMIC controls in Flint Township (280 miles from its reservation) and Port Huron (350 miles away) are not Indian Lands.

Absent Indian Lands designation, those parcels are not presently sovereign lands, are not eligible for casinos under IGRA, and are not exempt from the usual taxes, fees, codes, regulations and laws. Or to put it another way, those properties should be taxed and fees collected timely as they would for any other such property owner. 

Despite representations, there is currently no need for any special agreements to provide for emergency services or to accept some negotiated fees in lieu of taxes over the Flint Township, Port Huron or Vanderbilt properties. Such would only serve to advantage the tribe's interests going forward not the interests of local taxpayers and citizens or the people of Michigan.